May 31, 2009

[I]n an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.

So the reverse-discrimination claim is one of the very few cases where she stood out from the other judges. It's notable that that was a case that turned on free speech rights — and the speech in question was speech Sotomayor presumably disgrees with vehemently:

Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involv[ed] an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority’s decision to award summary judgment to the police department. She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.” In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant”....

But she upheld the rights of the employee as grounded solidly in the constitutional law of free speech. So let's think clearly about the real working of this "empathy" Obama has touted. Stop jumping ahead to the assumption that Sotomayor stretches the law to decide cases in favor of people who tug her heart strings and look at the record.

28 comments:

"Stop jumping ahead to the assumption that Sotomayor stretches the law to decide cases in favor of people who tug her heart strings and look at the record."

"Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion."

One part of the record. The case I cited the other day was one in which she swayed two other judges to overturn a jury decision that police had abused their authority. I happen to be for her asylum decision and against her abuse decision. Based on my empathy. Empathy is by definition partiality.

Republicans should all follow then-Senator Obama's example: He was facing the Democratic nomination as so "needed" to vote against both Roberts and Alito.

So, Republican Senators should only look at what is in their personal interest when deciding how to vote. They can cloak their political decision in some foggy statements about the changing ideology of the court as cover so it doesn't look quite like what it is.

"Just six months after Heller, however, Sotomayor issued an opinion in Maloney v. Cuomo that the protections of the Second Amendment do not apply to the states, and that if your city or state wants to ban all guns, then they have the right to disarm you. Such an opinion seems to fly directly in the face of Heller, exposing Sotomayor as an anti-gun radical who will affirm full-on gun prohibitions and believes that you have no right to own a firearm, even for the most basic right of defending your family in your own home."

Facts:"In a 2004 criminal case, U.S. v. Sanchez-Villar, a three-judge panel that included Sotomayor wrote that "the right to possess a gun is clearly not a fundamental right.

A three-judge panel including Sotomayor unanimously rejected his claim in January 2009, ruling that the Second Amendment "imposes a limitation on only federal, not state, legislative efforts.""

HArd to know how much Goldstein spun this, because now we have to assess Goldstein in addition to Sotomayor, and who has time for that. The sound byte from Berkeley is a little like Michelle Obama's sound byte from U of Chicago about how she had never been proud of America -- talking with the university professoriat in such instances perhaps makes such people go to a far extreme in terms of what they're comfortable saying, but they still said those things, and therefore must be comfortable with having said them?

How did Goldstein manage to assemble all the relevant documents? Are they assembled in some volume somewhere, or are they online, so that the hoi polloi might check them for themselves?

Thanks to the link from Paul A Barge which shows the tendency of the spin (8:32 am).

Stop jumping ahead to the assumption that Sotomayor stretches the law to decide cases in favor of people who tug her heart strings and look at the record.

This is heartening -- she talked big about race and her Latina psychology and physiognomy infecting her jurisprudence and how that's such a great thing, but perhaps she was just playing to the rubes in the Berkeley crowd there.

When you search for cases on Lexis or Westlaw, the name of the judge who authored the opinion shows up -- he could just search for "Sotomayor" and whatever other search terms he thought were appropriate. I expect that as an academic, he has free access to both services, so he can run as many searches as he likes. It's also possible to pull most appeals court opinions from free public sources, I think, but it's a lot harder to ensure you're getting a comprehensive search.

Well, I like her on Pappas, but not on the New Haven case, nor her failure to incorporate the 2nd Amdt. The later though probably should have been expected.

This may mean that Judge Sotomayor may not be as radical leftist as President Obama. But, then, maybe I am doing what so many in the center did last November with him, assuming that he really can't be as far to the left as some of what he had said would have lead them to believe.

But then I come back to the realization that a President who can flush trillions of dollars down the toilet, nationalize the big banks and 2/3 of our big indigenous car companies, is likely to do something similar with health care, and is likely to get some sort of lobbyist full employment bill (aka cap and trad) through Congress, can pretty much appoint anyone he wants with this Senate, and get them confirmed. So, I look at her, and think of how much worse it could be if she is rejected.

C'mon John, what has more credibility about how the judge will rule in the future? One hundred actual past decisions, or a speech she made in 2001 about how she hopes she'll make better decisions than a white guy without her background?

The post on HotAir points out meaningless this "analysis" is in determining Sotomayor's proclivities on the bench. Concurring with the majority in a liberal court isn't evidence that she isn't an outlier, but could just as well be proof that the majority of the court is just as liberal as she is.

I find it hilarious that this is supposed to end the debate over her racism when even Obama has had to walk it back because he can't defend it.

She is what she is, and no matter how much liberal spin is done to defend her she will always be the racist that she is.

It's not unreasonable to take her at her word when she says that she makes her decisions based on her gender and her ethnicity, but somehow it's reasonable to take some tainted analysis and claim it's more accurate than her own words.

There's a letter that Sotomayor wrote to Princeton University in 1974 as an undergraduate that shows that her racial or racist thought was always a big part of her thinking, and isn't incidental to a campus visit or two, but is really who she is from the ground up:

If I were playing marry, fuck, or dump among the female Supremes, I would give Sandra Day the marry slot, Sotomayor the fuck position, and Ginsberg the dump. Such a decision would be based, of course, on their best days on earth and not on their current allure. Playing marry, fuck, or dump within fair guidlines can teach us all how to reach balanced decisions among imponderable variables. I would wish the commenters here to show the same discipline in naming the next Supreme Court Justice.

A three-judge panel including Sotomayor unanimously rejected his claim in January 2009, ruling that the Second Amendment "imposes a limitation on only federal, not state, legislative efforts.This made my jaw drop. A constitutional protection that only applied to the federal government and not to the states is no protection at all. By this logic, the states should be free to violate the First Amendment and to prohibit speech, establish a state religion, and so on. Or violate the Fourth Amendment and do all the illegal searches and seizures they want. Or violate the Fifth Amendment and compel people to testify against themselves. How can she single out the Second Amendment and say only the right to keep and bear arms, and not the other rights, is not protected from state intrusion? That is truly frightening!

I hope the red-state Democratic senators hear about this. I hope it's spread around. The Dems are afraid of arousing people on gun control because it's a big loser for them. Not sure the voters would like a Senator who confirmed such a gun-grabber.

Everyone else gets to make their own decision as to discuss or not on their own as well.Of course. There's plenty to talk about. But whether it's fair to call her a "racist" seems settled. She's not one.

Apparently the base has communicated to the Republican leadership that they want a fight on this confirmation. To me, that seems an unwise course. But I live to be surprised.

Well, bluntly, Goldstein's analysis is incomplete. Let's take an easier case of bias. Say bank of america was going up against citi bank. It comes out that the judge holds stock in BOA. So who has the right to object?

Both parties. Why? Citi's objection is easy, but BOA's is counter-intuitive. For BOA, the concern is that in the process of trying to prove how fair he is to Citi, the judge might actually be unfair to BOA.

So letting off a white racist for saying racist things is not proof she is unbiased in those cases. The truth may be that in this case where her biases impacted so clearly, she chose to prove just how "unbiased" she was by going the other way, perhaps unfairly.

The fact is the statistic about her tenure don't mean a thing, positively or negatively. The assumption is that if she agrees with her colleague she is not biased, which is ironic, because it posits that a wise latina woman will come to the same conclusions as the other justices, including a few wise white males. As amusing as that turnabout is, as a matter of logic, it is utterly untenable.

Nor is saying she had a high rate of reversal all that useful. The Supreme Court is more likely to take on a case if they feel the lower court's conclusion was dubious. its a self-selected sample and in any case, too small of a sample to be meaningful.

The fact is that this fig leaf of statistical analysis is not enough to ge around the basic problem, which is that a reasonable question to her impartiality has been raised in any case involving white males, latina females, or discrimination. Thus she is not qualified to sit in fully half of the cases assigned to her; and thus she is too impaired to be an effective supreme court justice.

Anyone who wants to dispute that, explain to me how her comments do not create a reasonable question to her impartiality.